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Gun Ban Down

I'm disappointed that it was such a narrow majority:

District of Columbia v. Heller (Second Amendment challenge to D.C. handgun ban): Scalia majority opinion striking down ban. 5-4 ruling. Breyer dissent, joined by Stevens, Souter, Ginsburg. (No concurring opinions.)

If Obama does somehow get into the Oval Office, I'm glad that this case was handled this year. Almost certainly whoever his choice of nominees would be would have gone the other way. Of course, for the Dems, it will only be maintaining status quo, since it's the "liberal" justices that are most likely to step down soonest, I think.

Souter in particular was a disastrous pick for a supposedly Republican president.

Anyway, now on to the next case, depending on who brings it (I'm guessing someone in Chicago), which will bring in the Fourteenth Amendment and incorporation. But at least the court is now on record as having declared the right an individual one (again, I'm saddened, but no longer shocked, that four justices bizarrely think otherwise).

[Update a few minutes later]

I'll add that, based on what I've seen so far, it looks like the majority got it right. It's an individual right having nothing to do with state militias, but not an unlimited one. A gun ban in shopping malls or campuses is stupid, but not unconstitutional.

[Update a little after 11 AM EDT]

Eugene Volokh already has some initial thoughts, with more surely to come later, after the opinion is read. This is an interesting political point:

This split should be useful to either of the Presidential candidates who wants to make either gun control or gun rights into an election issue -- my guess is that this is more likely to be McCain. Expect McCain ads in states where there are likely many pro-gun swing voters stressing, "your constitutional right to keep and bear arms hangs by one vote." Also expect fundraising letters to likely pro-gun contributors stressing this at length.

Also expect questions of Obama whether he continues to support the gun ban in Chicago. And whether he still thinks that gun sales should be banned within five miles of a school (i.e., almost everywhere).

[Afternoon update]

I haven't read the dissents (and don't know if or when I will, given time constraints), but is it possible that the majority isn't as narrow as it looks? Four justices ruled that the DC ban was Constitutional, but they didn't necessarily do so on the basis that the right to keep and bear isn't individual. For instance, as Ed Whelan notes:

Stevens doesn't dispute that the Second Amendment protects an individual right, but he finds the scope of that right limited to using weapons for certain military purposes. He argues that the text of the Second Amendment (5-17), its drafting history (17-27), and the Court's precedents--especially its 1939 ruling in United States v. Miller (42-45)--support his reading.

Breyer argues that even if the Second Amendment does protect a right of personal self-defense, D.C.'s law is constitutional because the burdens it imposes are not disproportionate in light of the law's legitimate objectives. (That sure sounds like a meaningful test, doesn't it?)

So now we have at least six justices who agree that it is an individual right (Whelan doesn't say what Breyer's opinion on that score is, since Breyer doesn't accept that the ban would be Constitutional under that interpretation). And since Ginsburg and Souter joined Stephens dissent, and didn't write one of their own, doesn't it really make it at least eight to one?


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Leland wrote:

Not only is it a narrow majority, but it is a pretty narrow decision. What is deemed unconstitutional is out-right banning and requiring disassemblement and trigger locks. Court reaffirms right to ban convicted felons and mentally-ill from possessing arms, but then lumps that in with not allowing arms in schools and other sensitive locations.

In the realm of the "Constitution is a living document", the ruling defines the arms that can be possessed as those that are "in common use for lawful purposes". Well, I see two loopholes there. What is common? And if it is made unlawful to use a firearm? For instance, execution by firing squad use to be common and not unusual. Now a pin-prick is considered unusual from a worldly perspective.

Finally, Heller may possess an arm, but he is still required to register said firearm, and his is permitted to carry it in his home. When you get down to it, the SCOTUS has reaffirmed the protection you have to possess a firearm in your home only. The type of firearm is limited, and you can be required to register that you possess said firearm with the state and local authorities.

Rand Simberg wrote:

Leland, unless you've actually read the opinion, I think that it's premature to judge what they've done based on initial reports. I should have made that caveat myself when I stated my general agreement. I'm sure that analysis will be forthcoming this afternoon from places like Volokh.

Paul Breed wrote:

I read the summary paragraphs in the Opinion itself and the comments at SCOTUS Blog and it does look like a really narrow decision. I'm a bit disappointed that it did not go farther. I've been reasonably happy with the SCOTUS results this year. I liked both the Exxon and Gitmo decisions a lot.

I realize that the Gitmo decision may be unpopular with Rand, so I'll try to logically defend my thoughts:

One either believes in Natural rights or Government given rights. I believe in Natural rights. Given that position I can not justify holding a human being for years without charges or a chance to have a fair and public trial/hearing.

The terrorists at Gitmo may be vile, nasty bastards, but if you believe in natural rights these also apply to vile nasty bastards. The arbitrary application of power with the only safeguard being "Trust us were doing it for your own benefit" scares me far more than the islamo-fascists.

Leland wrote:


I was reading from the opinion. I haven't read a news article yet. All Volokh or SCOTUSblog have said is that the decision was made and provided a link for people to form their own view of the opinion. Gotta love the blog vs news mediums like NYT.

Leland wrote:

I should have said, "at the time I pulled down the opinion Volokh and SCOTUSblog had not given analysis." Anyway, reading the opinion brings very little joy to the notion the SCOTUS reaffirmed an individual right.

As I read it, SCOTUS says I can possess a firearm at home for self-defense. However, the state can:
* Require registration of firearms in possession.
* Limit what firearms can be kept.
* Limit where and how firearms are borne in public.

Jardinero1 wrote:

How the 2nd and the 14th amendment relate is going to have some very interesting ramifications for decades to come. My personal spin is that people who advocate for government enforced social engineering like to a take a very expansive view of the 14th amendment. Those same types also tend to be in favor of gun control at every level of government. So there is going to be this dissonance. On the one hand they want to use the 14th as justification to place mandates on the states but, on the other hand, they will want states to be able to restrict certain individual rights, like gun rights.

You can't, logically, have it both ways. How will they square the circle? The only way I see around it, for them, is to place a heavy penalty on the citizen for discharging his firearm. That is they will attack your right to defend yourself and they will attack the castle doctrine.

Another Drooling Anonymous Moron wrote:

It's time for Simberg to learn to shoot his gun.

Steve wrote:

what you say is right. "As I read it...", is the best way to go. There seems to be plenty of room for interpretation stll.

Wayne LaPierre and the NRA lawyers are saying this could void all laws concerning guns all the way back to the ban on automatic weapons from the 1930's.

The D.C. Mayor is saying it allows handguns at home. Nowhere else, and no concealed carry will be considered. But no auto or semi-auto hand guns will be allowed.

Frankly, I'm not seeing anything either as limiting as the Mayor nor as open as the NRA. As with many things, the Devil is in the details.

I'm just glad it leaves open the basic right. That way we can defend ourselves from the 4 Justices in the minority, the Mayor of D.C., and anyone else who sees the 2nd Amendment as "extraneous".

Leland wrote:


Agreed. It's as if the Bill of Rights is for individuals with the exception of the 2nd amendment which (according to the dissenting opinion) regards state militaries only. My civic understanding of the purposes of the Bill of Rights was to spell out the individual and inalienable rights of the citizens, with the purpose of the 10th Amendemnt to incorporate these rights to the states as well. My view of the Bill of Rights is not fully affirmed by this decision.


I can read it as open for the expansion of gun rights as well. However, both recent trend and the opinions of the dissent wouldn't prevent me from making the bold claims of Wayne LaPierre. I know he's just spinning, but I see only spin and not substance.

I predict the DC Mayor and Council will require all civilian firearms in DC be registered, and also require all civilian firearms in transport outside the home be disassembled and disabled with a functional trigger lock.

Leland wrote:

Reading through some Volokh comments, the affect on the election is also interesting to consider (since Rand seemed to want the discussion to go that way).

Consider how narrow the opinion is worded:
an individual right to possess a government approved firearm in one's home shall not be infringed

As one commented put it:
This 5-4 decision, strictly on ideological grounds, indicates how little Supreme Court members care for principles of law compared to their beloved policy preferences.

I don't think a 9-0 decision would have factored as much into the current Presidential contest. I think most Democrats would understand the Bill of Rights allows for gun ownership in the home, and Republicans would think the court was being less activitist and more minimal approach to strict interpretation of the Constitution and the role of the Courts.

BD wrote:

I don't agree with the characterization of the opinion as "narrow." Keep in mind that the case in question only involved the constitutionality of D.C.'s ban on keeping handguns and unlocked/assembled longarms in the home. The issue of bans on, for example, openly wearing a sidearm out in public, weren't at issue in the case. The majority made it clear that, while the opinion doesn't mean people have an unfettered right to keep or carry whatever kinds of guns they want, whenever and wherever they want, individuals have a Constitutional right to keep and bear arms of the type that are commonly used for lawful purposes and no supposedly competing public interest (such as reducing crime) can trump that.

As for whether the opinion leaves room for states and cities to nibble at the edges of that right through such means as requiring registration and banning certain kinds of guns, of course it does; however, I had always thought the danger presented by those kinds of regulation was that they would eventually lead to an outright ban. As this opinion precludes an outright ban from ever coming into existence, I don't really understand how a state's prohibition against machine gun ownership, for example, is going to be worth getting upset about.

In any event, it's just possible that Scalia is correct, and the framers DIDN'T intend for the Constitution to prevent the government from being able to prohibit private ownership of things like flame throwers, which, one must admit, would be a fairly bizarre choice of weapons for routine self-defense. Are we going to label this opinion "narrow" merely because Scalia refused to endorse a reading of the 2d amendment broader than the historical record would support? I regard his opinion not as "narrow" or "broad," but simply in keeping with the historical meaning of the 2d amendment as best the Court could discern it. What more can ask them to do?

Leland wrote:

NYT reports from a pro-gun control point of view. Here is Mayor Daley's take:

"Does this lead to everyone having a gun in our society?" he said at a news conference. "If they think that's the answer, then they're greatly mistaken. Then, why don't we do away with the court system and go back to the Old West? You have a gun and I have a gun and we'll settle in the streets."

"They're changing the rules," Mr. Daley said of the Supreme Court. "Why should we as a city not be able to protect ourselves from those who want guns in our society?"

Mr. Daley, the question answered by US Constitution and reaffirmed by the Supreme Court is "why should we as citizens not be able to protect ourselves from a city, more specifically the federal government, who wants guns to enforce its view of society."

For instance, let's say a government bureaucracy decided to make it illegal to claim manmade Global Warming is not a proven fact. Shouldn't citizens be able to defend themselves from such a government, that would otherwise deprive them of liberty? Perhaps meer deprivation of liberty doesn't rise to the need of self-defense with a firearm. Well, let's say a government bureaucracy said it was immoral and unnatural to practice Judaism, and practioners should be purged from society?

Actually, when you take literally what Daley suggests, apparently if citizens are allowed to carry weapons, then he is proposing doing away with courts and letting police settle the situation via gun fights.

Jardinero1 wrote:

I love it when big government liberals start affirming states rights. In a bizzare way, an Obama victory would be good for gun rights. In order to strike down most state and local gun control laws you need to follow the precedents laid down in the wake of the 14th amendment and disregard the tenth amendment. To preserve those precedents you need 1960's style, liberal judges of the type that Obama would likely appoint. Judges who view the tenth amendment with higher regard would be the worst thing for gun rights, because they would affirm the various states' right to regulate firearms. I think the members of the court recognized this dichotomy and that is why they limited the breadth of their ruling.

Scott wrote:

I suspect that the outcome of all of this will be broader than many of the posters here suspect. Keep in mind that the Supreme Court has come down clearly on the side of the 2nd Ammendment as an INDIVIDUAL right, not a collective one (Scalia's language on this is unmistakeable, and even the dissenters - albeit somewhat grumpily, and with many hedges - concurred on that point), and hence any regulation or restriction that unduly limits the exercise of that right (Leland's comment to Steve regarding the prospective DC reaction to Heller) is likely to fail judicial scrutiny. Replace the phrase 'gun rights' with 'abortion rights', and you will quickly get the picture...

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This page contains a single entry by Rand Simberg published on June 26, 2008 7:50 AM.

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